to lay down in the first aid room after applying the aforementioned
medication. (Compl. ¶ 8.) Before being transported to the hospital,
an agent or servant of Harrah's gave Wiora a sweatshirt to wear. (Def.'s
12(M) Stmt. ¶ 4.)
Wiora claims that on or about February 1, 1998, she discovered that on
the date of her accident, Harrah's did indeed film her as she was
applying medication to her chest. (Compl. ¶ 12-14.) Defendant admits
that there does exist a videotape that portrays Wiora applying medication
to her chest. (Def.'s 12(M) Stmt. ¶ 5.) Wiora asserts that at least
four agents and servants of Harrah's were present in the surveillance
room at the time of the taping and saw the video tape from the cameras
and/or photographs. (Compl. ¶ 17.) Wiora further contends that agents
or servants of Harrah's showed the videotape and/or photographs to third
persons. (Compl. ¶ 16.)
On July 30, 1998, Wiora filed a two count complaint against Defendant
Harrah's claiming invasion of privacy and intentional infliction of
emotional distress. She brought this original complaint on the basis of
diversity jurisdiction under 28 U.S.C. § 1332. About a month later,
Wiora amended her complaint to include a third count, a Title VII sexual
harassment claim. Rather than filing an amended complaint, Wiora filed an
amendment to the complaint, only adding Count III, the Title VII claim.
In her amendment, Wiora states the court has federal question
jurisdiction under 28 U.S.C. § 1331. Defendants now ask the court to
grant partial summary judgment in its favor for Counts I and II.
Defendant moves the court to enter partial summary judgment on its
behalf under Rule 56 of the Federal Rules of Civil Procedure. The court
will render summary judgment only if the factual record shows "that there
is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Bratton v. Roadway Package
Sys., Inc., 77 F.3d 168, 173 (7th Cir. 1996) (quoting Fed. R.Civ.P.
56(c)). The court will not render summary judgment if "a reasonable jury
could return a verdict for the nonmoving party." Sullivan v. Cox,
78 F.3d 322, 325 (7th Cir. 1996) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In
ruling on a motion for summary judgment, the court views the facts in the
light most favorable to the nonmoving party. Bratton, 77 F.3d at 171;
Sullivan, 78 F.3d at 325.
On a motion for summary judgment, the moving party "bears the initial
burden of showing that no genuine issue of material fact exists." Hudson
Ins. Co. v. City of Chicago Heights, 48 F.3d 234, 237 (7th Cir. 1995)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986)). Then the burden shifts to the nonmoving party, which
"must set forth specific facts showing that there is a genuine issue for
trial." Fed.R.Civ.P. 56(e); accord, NLFC, Inc. v. Devcom Mid-America
Inc., 45 F.3d 231, 234 (7th Cir. 1995), cert. denied, 515 U.S. 1104, 115
S.Ct. 2249, 132 L.Ed.2d 257 (1995).
These burdens are reflected in Rule 12 of the Local General Rules for
the Northern District of Illinois. Waldridge v. American Hoechst Corp.,
24 F.3d 918, 921-22 (7th Cir. 1994). Under Rule 12(M), the moving party
must submit a statement of material facts in the form of short numbered
paragraphs supported by specific references to the factual record. Under
Rule 12(N), the nonmoving party must submit a response to each such
paragraph, including (in the case of disagreement) specific references to
the factual record.*fn1 If the nonmoving party fails to disagree
with a fact in the moving party's 12(M) statement, the court will deem
that fact admitted. See Local Rule 12(N). Similarly, if the nonmoving
party disagrees with a fact in the moving party's statement, but fails to
support its disagreement with a specific reference to the factual
record, the court may deem that fact admitted as well. Fed.R.Civ.P.
56(e); Flaherty v. Gas Research Institute, 31 F.3d 451, 453 (7th Cir.
The court reminds the parties of the necessity and importance of
complying with the local rules pertaining to motions for summary
judgment. The Seventh Circuit has made clear "`the exacting obligation
[local] rules impose on a party contesting summary judgment.'" Little v.
Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995) (citations
omitted). Local rules 12(M) and 12(N) are designed to "inform the court
of the evidence and arguments in an organized way — thus
facilitating its judgment of the necessity for trial." Id. Local Rules
12(M) and 12(N) clearly and specifically put the moving and non-moving
parties on notice as to the required material each party must present to
the court. Here, plaintiff filed neither a 12(M) response, nor a 12(N)
statement. While the court must then deem facts contained in defendant's
12(M) statement admitted, it is not relieved of its obligation to
determine whether there is a genuine issue of material fact. See Johnson
v. Gudmundsson, 35 F.3d 1104, 1116 (7th Cir. 1994).
Harrah's argues that since Wiora can be considered a seaman by law, the
Jones Act is her sole means to recover for personal injuries sustained
while working on the casino boat. Harrah's further contends that under
the Jones Act, employees may not recover for purely emotional injuries
such as those resulting from invasion of privacy and intentional
infliction of emotional distress. Since Harrah's maintains that Wiora has
no remedy for her claims under the Jones Act, Harrah's asks this court to
grant summary judgment on Counts I and II.
In the alternative, Harrah's argues that even if the Jones Act does not
apply, the court lacks jurisdiction over Counts I and II. Defendant claims
that the parties are not diverse and therefore, the court does not have
diversity jurisdiction. Additionally, Harrah's urges the court not to
exercise supplemental jurisdiction by virtue of Title VII. In response,
Wiora claims that the Jones Act does not apply, given the facts of this
case. In addition, Wiora contends that even if the Jones Act applies in
this case, and that the court may not exercise admiralty jurisdiction,
either under general admiralty law or the Jones Act. Furthermore, she
argues, Title VII provides a means for the court to exercise supplemental
jurisdiction over Counts I and II.
Therefore before the court can make its decision, it must resolve three
questions: (1) does the Jones Act apply in this case, in other words, can
Wiora be considered a seaman under the Jones Act and may the court
exercise admiralty jurisdiction over this case; (2) if she is a seaman,
does the Jones Act preclude her from bringing tort claims designed to
compensate for emotional injury; and (3) if these claims are not
precluded by the Jones Act, does the court have an independent basis upon
which to exercise jurisdiction?
I. Applicability of the Jones Act
A. Is Wiora a seaman under the Jones Act?
A review of the case law suggests that Wiora does satisfy the criteria
set out to determine seaman status under the Jones Act. The Jones Act
sets forth a scheme of recovery for personal injury incurred by seamen
while working on a vessel in navigable waters. 46 U.S.C.App. § 688.
The Jones Act provides, in relevant part:
Any seaman who shall suffer personal injury in the
course of his employment may, at his election,
maintain an action for damages at law, with the right
of trial by jury, and in such action all statutes of
the United States modifying or